Case Number: KC069801 Hearing Date: May 30, 2018 Dept: J

Re: Dennis S. Sterndahl v. Xtreme Motor Sports, Inc., et al. (KC069801)

DEMURRER TO COMPLAINT

Moving Parties: Defendants Xtreme Motor Sports, Inc. and Jamie John Barnett

Respondent: Plaintiff Dennis S. Sterndahl

POS: Moving OK; Opposing untimely and served by regular mail contrary to CCP § 1005(c)

Plaintiff alleges that on or about 9/23/13, he entered into an oral agreement with Defendant Xtreme Morot Sports, Inc. (“Xtreme”), whereby Xtreme agreed to renovate plaintiff’s 1991 Chevrolet Duelly in exchange for payment. Plaintiff alleges that on or about 8/22/17, he discovered that Xtreme did not intend to complete the work and that it had grossly overbilled for the work it had done. The complaint, filed 11/15/17, asserts causes of action against Defendants Xtreme, Jamie John Barnett and Does 1-100 for:

1. Breach of Contract

2. Common Counts

3. Fraud

A Case Management Conference is set for 5/30/18.

Defendants Xtreme Motor Sports, Inc. (“Xtreme”) and Jamie John Barnett (“Barnett”) demur, per CCP § 430.10(e)&(f), to the first through third causes of action in Plaintiff Dennis Sterndahl’s (“plaintiff”) complaint, on the basis that they each fail to state facts sufficient to constitute a cause of action and are uncertain.

At the outset, the court notes that the first and second causes of action are alleged against Xtreme only and that the third cause of action is alleged against Barnett only.

FIRST CAUSE OF ACTION (i.e., BREACH OF CONTRACT):

“’A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’ (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228.

Plaintiff has not sufficiently pled the aforesaid elements. Plaintiff has not provided any information relative to the anticipated completion date of the work. Plaintiff has failed to allege what work was performed, what work was unfinished, what work was allegedly overbilled, what work was abandoned, and what work was allegedly not intended to be completed.

Accordingly, Xtreme’s demurrer to the first cause of action is sustained.

SECOND CAUSE OF ACTION (i.e., COMMON COUNTS):

“The term ‘book account’ means a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner.” CCP § 337a.

Here, plaintiff fails to plead the existence of an open book account.

Additionally, “[a] common count is not a specific cause of action…; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395 (internal citations omitted).

As plaintiff’s common count cause of action is premised upon the breach of contract cause of action and the demurrer to that cause of action is sustained, the common count cause of action is likewise defective; as such, Xtreme’s demurrer to the second cause of action is sustained.

THIRD CAUSE OF ACTION (i.e., FRAUD):

“’A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]’ (Lazar [v. Superior Court (1996)] 12 Cal.4th [631,] at p. 638). Thus, in a promissory fraud action, to sufficiently alleges [sic] defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false. (Id. at 639).” Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.

“To sufficiently plead the first requirement, that the defendant made a promise, the complaint must state ‘”facts which “show how, when, where, to whom, and by what means the representations were tendered.’” [Citation.]’ (Lazar, supra, 12 Cal.4th 631, 645). As for the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance. (See Tyco Industries, Inc. v. Superior Court (1985) 164 Cal.App.3d 148).” Id.

Plaintiff has not pled facts “show[ing] how, when, where, to whom, and by what means the representations were tendered.” Additionally, “[i]n order to recover for fraud, as in any other tort, the plaintiff must plead and prove the ‘detriment proximately caused’ by the defendant’s tortious conduct. (Civ. Code, § 3333). Deception without resulting loss is not actionable fraud. (Hill v. Wrather (1958) 158 Cal.App.2d 818, 825). ‘Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.’ (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 680, p. 131.).” Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818. Plaintiff has not sufficiently pled causation and damages.

Accordingly, Barnett’s demurrer to the third cause of action is sustained.

The court will hear from counsel for plaintiff as to whether leave to amend is requested.